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OFFICIAL GAZETTE OF THE REPUBLIC OF THE PHILIPPINES

Philippine
position on Bajo de Masinloc (Scarborough Shoal) and the waters
within
its vicinity
April 18, 2012
Department of Foreign Affairs
April 18, 2012
BACKGROUND ON THE BAJO DE MASINLOC (PANATAG) INCIDENT
Bajo de Masinloc is an integral part of the Philippine territory. It is part of
the Municipality of Masinloc, Province of Zambales. It is located 124
nautical miles west of Zambales and is within the 200 nautical-mile
Exclusive Economic Zone (EEZ) and Philippine Continental Shelf.
A Philippine Navy Surveillance aircraft monitored eight Chinese fishing
vessels anchored inside the Bajo de Masinloc (Panatag Shoal) on Sunday,
April 8, 2012, in the conduct of its maritime patrols and its enforcement of
the Philippine Fisheries Code and marine environment laws. On April 10,
2012, the BRP Gregorio del Pilar, in accordance with the established Rules
of Engagement, dispatched an inspection team that reported that large
amounts of illegally collected corals, giant clams, and live sharks were
found in the compartments of these fishing vessels.
The actions of the Chinese fishing vessels are a serious violation of the
Philippines sovereignty and maritime jurisdiction. The poaching of
endangered marine resources is in violation of the Fisheries Code and the
Convention on International Trade in Endangered Species of Wild Flora and
Fauna (CITES).
WATERS
BASIS
OFWITHIN
PHILIPPINE
ITS VICINITY
SOVEREIGNTY OVER BAJO DE MASINLOC AND THE
Bajo de Masinloc (Scarborough Shoal) is not an island. Bajo de Masinloc is
also not part of theSpratlys.
Bajo de Masinloc (Scarborough Shoal) is a ring-shaped coral reef, which
has several rocksencircling a lagoon. About five of these rocks

are above water during high tide. Of these five rocks, some are about 3
meters high above water. The rest of the rocks and reefs are below
water during high tide.
Bajo de Masinlocs (Scarborough Shoal) chain of reefs and rocks is
about 124 NM from the nearest coast of Luzon and approximately 472
NM from the nearest coast of China. Bajo de Masinloc is located
approximately along latitude 1508N and longitude 11745E. The
rocks of Bajo de Masinloc are situated north of the Spratlys.
Obviously,
therefore,
the rocks of
Bajo
de
Masinloc
is
also within the 200-NM EEZ and 200-NM continental shelf (CS) of the
Philippines.
A distinction has to be made between the rock features of Bajo de
Masinloc and the larger body of water and continental shelf where the
said geological features are situated. The rights ornature of rights of
the Philippines over the rock features of Bajo de Masinloc
are different from that which it exercises over the larger body of water
and continental shelf.
The
Philippines
exercises full
sovereignty and jurisdiction over
the rocks of
Bajo
de
Masinloc,
and sovereign
rights over
the waters and continental shelf where the said rock features of Bajo
de Masinloc are situated.
The basis of Philippine sovereignty and jurisdiction over the rock
features of Bajo de Masinloc isdistinct from that of its sovereign rights
over the larger body of water and continental shelf.
A. The rock features of Bajo de Masinloc: Basis of Philippine
sovereignty under Public International Law
The rock features of Bajo de Masinloc are Philippine territories.
The basis of Philippine sovereignty and jurisdiction over the rock features
of Bajo de Masinloc is not premised on the cession by Spain of the
Philippine archipelago to the United States under the Treaty of Paris. The

matter that the rock features of Bajo de Masinloc are not included or within
the limits of the Treaty of Paris as alleged by China is therefore immaterial
and of no consequence.
Philippine sovereignty and jurisdiction over the rocks of Bajo de Masinloc is
likewise not premised on proximity or the fact that the rocks are within its
200-NM EEZ or CS under the UN Convention on the Law of the Sea
(UNCLOS). Although the Philippines necessarily exercise sovereign rights
over its EEZ and CS, nonetheless, the reason why the rock features of Bajo
de Masinloc are Philippine territories is anchored on other principles of
public international law.
As decided in a number of cases by international courts or tribunals, most
notably the Palmas Island Case, a modality for acquiring territorial
ownership over a piece of real estate is effective exercise of
jurisdiction. Indeed, in that particular case, sovereignty over the Palmas
Island wasadjudged in favor of the Netherlands on the basis of effective
exercise of jurisdiction, although the said island may have
been historically discovered by Spain and historically ceded to the
U.S. in the Treaty of Paris.
In the case of Bajo de Masinloc, the Philippines has exercised
both effective occupation andeffective jurisdiction over Bajo de
Masinloc since its independence.
The name Bajo de Masinloc (translated as under Masinloc) itself
identifies the shoal as a particular political subdivision of the Philippine
province of Zambales, known as Masinloc.
One of the earliest known and most accurate maps of the area, named
Carta Hydrographical y Chorographica De Las Yslas Filipinas by Fr. Pedro
Murillo Velarde, SJ, and published in 1734, included Bajo de Masinloc as
part of Zambales.
The name Bajo de Masinloc was a name given to the shoal by the Spanish
colonizers. In 1792, another map drawn by the Alejandro Malaspina
expedition and published in 1808 in Madrid, Spain, also showed Bajo de
Masinloc as part of Philippine territory. This map showed the route of the

Malaspina expedition to and around the shoal. It was reproduced in the


Atlas of the 1939 Philippine Census.
The Mapa General, Islas Filipinas, Observatorio de Manila, published in
1990 by the U.S. Coast and Geodetic Survey, also included Bajo de
Masinloc as part of the Philippines.
Philippine flags have been erected on some of the islets of the shoal,
including a flag raised on an 8.3-meter high flagpole in 1965 and another
Philippine flag raised by Congressmen Roque Ablan and Jose Yap in 1997.
In 1965, the Philippines also built and operated a small lighthouse in one
of the islets in the shoal. In 1992, the Philippine Navy rehabilitated the
lighthouse
and
reported
it
to
theInternational
Maritime
Organization for publication in the List of Lights (currently, this
lighthouse is not operational).
Bajo
de
Masinloc
was
also
used
as
an impact
range by Philippine and U.S. Naval Forcesstationed in Subic Bay in
Zambales for defense purposes. The Philippines Department of
Environment and Natural Resources, together with the University of the
Philippines, has also been conducting scientific, topographic, and marine
studies in the shoal. Filipino fishermen have always considered it as their
fishing grounds, owing to their proximity to the coastal towns and areas of
Southwest Luzon.
In 2009, when the Philippines passed an amended Archipelagic Baselines
Law that is fully consistent with the Law of the Sea, Bajo de Masinlocs was
classified under the Regime of Islands consistent with the Law of the
Sea.
Section 2. The baseline in the following areas over which the Philippines
likewise exercises sovereignty and jurisdiction shall be determined as
Regime of Islands under the Republic of the Philippines consistent with
Article 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No.
1596; and

b) Bajo de Masinloc, also known as Scarborough Shoal.


Comments on Chinese claims
Question:
But what about the historical claim of China over Bajo de Masinloc
(Scarborough Shoal)? Does China have a much superior right over Bajo de
Masinloc (Scarborough Shoal) on the basis of its so-called historical claim?
China is claiming Bajo de Masinloc (Scarborough Shoal) based on historical
arguments, claiming it to have been discovered by the Yuan Dynasty?
China is also claiming that Bajo de Masinloc (Scarborough Shoal) has been
reflected on various official Chinese Maps and has been named by China
in various official documents?
Answer:
Chinese assertion based on historical claims must be substantiated by a
clear historic title. It should be noted that under public international
law, historical claims are not historical titles. A claim by itself,
including historical claim, could not be a basis for acquiring a territory.
Under international law, the modes of acquiring a territory are: discovery,
effective occupation, prescription, cession, and accretion. Also, under
public international law, for a historical claim tomature into a historical
title, a mere showing of long usage is not enough.
Other criteria have to be satisfied such as that the usage must
be open, continuous, adverse or,
in
the
concept
of
an
owner, peaceful and acquiesced by other states. Mere silence by other
states to ones claim is not acquiescence under international
law. Acquiescence must be affirmativesuch that other states recognize
such claim as a right on the part of the claimant that other states ought to
respect as a matter of duty. There is no indication that the international
community haveacquiesced to Chinas so-called historical claim.
In relation to name-giving and maps, name-giving (or names in general),
and placing of land features on maps, these are also not bases in

determining sovereignty. In international case law relating to questions of


sovereignty and ownership of land features, names and maps are not
significant factors in the determination of international tribunals
determination of sovereignty.
Question:
What about China claiming Bajo de Masinloc as traditional fishing
waters of Chinese fishermen?
Answer:
Under international law, fishing rights is not a mode of acquiring
sovereignty (or even sovereign rights) over an area. Neither could it be
construed that the act of fishing by Chinese fishermen is a sovereign act of
a state nor can be considered as a display of state authority. Fishing is
aneconomic activity done by private individuals. For occupation to be
effective, there has to beclear demonstration of the intention and will of
a state to act as sovereign, and there has to be a peaceful and continuous
display of state authority, which the Philippines has consistently
demonstrated.
Besides, when UNCLOS took effect, it has precisely appropriated various
maritime zones to coastal states, thus eliminating so-called historical
waters and justly appropriating the resources of the seas to coastal states
to which said seas are appurtenant. Traditional fishing rights is in fact
mentioned only in Article 51 of UNCLOS, which calls for archipelagic states
to respect such rights, if such exist, in its archipelagic waters.
It should also be noted that, in this particular case, the activities of these
so-called fishermen can be hardly described as fishing. The evidence
culled by the Philippine Navy showed clearly that these are poaching
activities involving the harvesting of endangered marine species, which
is illegal in the Philippines and illegal under international law, specifically
the CITES.
B. Waters outside and around Bajo de
Philippine sovereign rights under UNCLOS

Masinloc:

Basis

of

As earlier indicated, there is a distinction between the rock features of


Bajo de Masinloc and the waters within its vicinity. The question of who
owns the rocks is a matter governed by the principles of public
international law relating to modalities for acquiring territories. On the
other hand, the extent of its adjacent waters is governed by UNCLOS.
Likewise, the waters outside of the maritime area of Bajo de Masinloc are
also governed by UNCLOS.
As noted, there are only about five rocks in Bajo de Masinloc that are
above water during high tide. The rest are below water during high tide.
Accordingly, these rocks have only 12 NM maximum territorial waters
under Article 121 of UNCLOS. Because the Philippines has sovereignty over
the rocks of Bajo de Masinloc, it follows that it has also sovereignty over
their 12-NM territorial waters.
Question:
But what about the waters outside of the 12-NM territorial waters of the
rock features of Bajo de Masinloc? What is the nature of these waters
including the continental shelves? Which state has sovereign rights over
them?
Answer:
As noted, Bajo de Masinloc is located approximately at latitude 1508N
and longitude 11745E. It is approximately 124 NM off the nearest coast
of the Philippine province of Zambales. Clearly, the rock features of Bajo
de Masinloc are within the 200-NM EEZ and CS of the Philippine
archipelago.

Therefore, the waters and continental shelves outside of the 12-NM


territorial waters of the rocks of Bajo de Masinloc appropriately
belong to the 200-NM EEZ and CS of the Philippine archipelago. As such,
the Philippines exercises exclusive sovereign rights to explore and
exploit the resources within the said areas to the exclusion of other
countries under UNCLOS. Part V of UNCLOS specifically provides that the
Philippines
exercises
exclusive
sovereign
rights
to explore, exploit,conserve, and manage resources, whether living
or nonliving, in this area.
Although, other states have the right of freedom of navigation over the
said areas, such rights could not be exercised to the detriment of the
internationally recognized sovereign rights of the Philippines to explore
and exploit the resources in its 200-NM EEZ and CS. To do otherwise would
be in violation of international law specifically UNCLOS.
Therefore, the current action of the Chinese surveillance vessels in the
said 200-NM EEZ of the Philippines that are law enforcement in nature
is obviously inconsistent with its right of freedom of navigation and
in violation of the sovereign rights of the Philippines under UNCLOS.
It must also be noted that the Chinese fisherman earlier apprehended by
Philippine law enforcement agents may have poached not on Bajo de
Masinloc per se, but likely on the EEZ of the Philippines. Therefore,
these poachers have likewise violated the sovereign rights of the
Philippines under UNCLOS.
PRESENCE OF THE PHILIPPINE-REGISTERED ARCHEOLOGICAL VESSEL
The Philippine National Museum has been undertaking an official marine
archaeological survey in the vicinity of Bajo de Masinloc.
The archaeological survey is being conducted by the Philippine National
Museum, which is on board the Philippine motor yacht M/Y Saranggani.
Chinese maritime surveillance vessels have been harassing the
M/Y Saranggani. The Philippines has strongly protested these harassments
by the Chinese side. Said actions by the Chinese vessels are in violation of

the sovereign right and jurisdiction of the Philippines to conduct marine


research or studies in its EEZ.

The coral colonies in Bajo de Masinloc have been in existence for


centuries.

ENDANGERED SPECIES FOUND IN CHINESE FISHING VESSELS


The Philippine Navy, during a routine sovereignty patrol, saw eight fishing
vessels moored at the Bajo de Masinloc on April 10. The Philippine Navy
inspected these vessels and discovered that they were Chinese fishing
vessels and on board were illegally obtained endangered corals and giant
clams in violation of the Philippine Fisheries Code.

CURRENT SITUATION
The Philippines is committed to the process of consultations with China
toward a peaceful and diplomatic solution to the situation.

The Philippines is a staunch advocate in protecting its marine environment


from any form of illegal fishing and poaching. It is a state party to the
CITES and Convention on Biological Diversity.

STAY UP TO DATE WITH YOUR GOVERNMENT.

This illicit activity has also undermined the work of the Philippine
government as a member of the Coral Triangle Initiative.

As the DFA works toward a diplomatic solution, the Philippine Coast Guard
is present in the area and is continuing to enforce relevant Philippine laws.

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